NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-DEC-2020
07:45 AM
Dkt. 50 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee,
v.
PAUL H. STERN, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
NORTH AND SOUTH KONA DIVISION
(CASE NO. 3DTC-19-053119)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Defendant-Appellant Paul H. Stern (Stern) appeals from
the Judgment and Notice of Entry of Judgment (Judgment), entered
by the District Court of the Third Circuit (District Court)1 on
September 5, 2019. After a bench trial, the District Court
convicted Stern of Driving Without a License (DWOL), in violation
of Hawaii Revised Statutes (HRS) § 286-102(b) (Supp. 2018).2
1
The Honorable Margaret K. Masunaga presided.
2
HRS § 286-102 provides, in relevant part:
(b) A person operating the following category or
combination of categories of motor vehicles shall be
examined as provided in section 286-108 and duly licensed
by the examiner of drivers:
(1) Mopeds;
(2) Motorcycles, except for autocycles as
described in paragraph (2) of the definition
of "motorcycle" in section 286-2, and motor
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On appeal, Stern argues (1) the District Court failed
to obtain a valid waiver of his constitutional right to testify
as required by Tachibana v. State, 79 Hawai#i 226, 900 P.2d 1293
(1995), and (2) there was insufficient evidence to convict him.
Upon careful review of the record and the briefs submitted by the
parties and having given due consideration to the arguments
advanced and the issues raised by the parties, we vacate Stern's
conviction and remand for a new trial.
(1) Stern argues that the District Court did not
obtain a valid waiver of his right to testify as required by
Tachibana because, inter alia, it did not conduct an ultimate
colloquy after the state presented its case and before Stern
waived his right to testify. We agree.
"The validity of a defendant's waiver of constitutional
rights in a criminal case is a question of law under the state
and federal constitutions, which we review under the right/wrong
standard." State v. Martin, 146 Hawai#i 365, 377, 463 P.3d 1022,
1034 (2020), as corrected (Apr. 23, 2020) reconsideration denied,
No. SCWC-XX-XXXXXXX, 2020 WL 2538923 (May 19, 2020) (citation
omitted). Moreover,
A defendant's right to testify is violated when the colloquy
does not establish an objective basis for finding that the
defendant knowingly, intelligently, and voluntarily gave up
their right to testify. Courts look to the totality of the
facts and circumstances to determine whether a waiver of the
right to testify was voluntarily and intelligently made.
Id. at 379, 463 P.3d at 1036 (citations, quotation marks and
brackets omitted).
2
(...continued)
scooters;
(3) Passenger cars of any gross vehicle weight
rating, buses designed to transport fifteen
or fewer occupants, trucks and vans having a
gross vehicle weight rating of eighteen
thousand pounds or less, and autocycles as
described in paragraph (2) of the definition
of "motorcycle" in section 286-2; and
(4) All of the motor vehicles in category (3) and
any vehicle that is not a commercial motor
vehicle.
2
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Here, after the State presented its witnesses, the
District Court accepted Stern's waiver of his right to testify
without a proper colloquy with Stern as to all of the principles
regarding his right to testify and right not to testify as
required by Tachibana. See Martin, 146 Hawai#i at 378, 463 P.3d
at 1035; Tachibana, 79 Hawai#i at 236 n.7, 900 P.2d at 1303 n.7.
Specifically, after the State presented its case, the following
exchange occurred:
THE COURT: . . . So, Mr. Stern, as I mentioned at
the beginning of the trial that, . . . I had to do the
. . . advisement of rights which we call the . . .
"Tachibana colloquy."
THE DEFENDANT: Mmm-hmm.
THE COURT: And so I'm going to have to ask you the
same questions.
So earlier I had said it's your personal right to
testify or not testify, remain silent, and if you have
not testified at the end of the trial after the State
rests and all evidence other than . . . your testimony is
received I have to question you . . . again . . .
relating to whether you want to . . . testify or not
testify.
So, Mr. Stern, have you decided whether you want to
testify or not testify?
THE DEFENDANT: No.
THE COURT: Or do you wanna take a recess and talk
to your attorney Mr. Sylva regarding . . . your decision
or before you make a decision?
(The defendant and his counsel held a discussion
off the record.)
[DEFENSE COUNSEL]: And, Your Honor, I believe,
. . . Mr. Stern is ready to proceed with, uh, answering
the Court's question. Stand up for the judge.
THE DEFENDANT: Okay, . . .
THE COURT: Okay.
THE DEFENDANT: I am not gonna testify.
THE COURT: Pardon?
THE DEFENDANT: I will not testify.
THE COURT: You will not be testifying?
THE DEFENDANT: Yes, ma'am. Or, yes, Your Honor.
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THE COURT: Okay. So the Court finds defendant
knowingly, voluntarily, intelligently waived his right to
testify and will not testify and will remain silent, and
the Court will not hold his silence against him.
The State contends the District Court's pretrial
colloquy satisfied Tachibana. However, in the pretrial colloquy,
the District Court stated at the end that "later on I'm gonna ask
you these same questions[,]" but the ultimate colloquy did not
ask the same, pertinent questions or involve a true colloquy.
Given the circumstances of this case, we cannot say that the
pretrial colloquy established that Stern thereafter knowingly,
intelligently, and voluntarily waived his right to testify. See
State v. Eduwensuyi, 141 Hawai#i 328, 335, 409 P.3d 732, 739
(2018) (holding that the pretrial advisement in that case did not
serve as a substitute for deficiencies in the ultimate colloquy);
State v. Preza Haynes, No. CAAP-XX-XXXXXXX, 2019 WL 4751539, at
*2-4, 145 Hawai#i 145, 449 P.3d 746 (App. Sept. 30, 2019) (SDO).
Also, although the State argues that Stern conferred with his
counsel, "a court may not rely upon an off-the-record discussion
between counsel and a defendant to establish a valid waiver of a
constitutional right[.]" Eduwensuyi, 141 Hawai#i at 336, 409
P.3d at 740.
Accordingly, we conclude the District Court did not
obtain a valid waiver from Stern of his right to testify.3 We
further conclude that the District Court's error was not harmless
beyond a reasonable doubt. See Tachibana, 79 Hawai#i at 240, 900
P.2d at 1307 ("Once a violation of the constitutional right to
testify is established, the conviction must be vacated unless the
State can prove that the violation was harmless beyond a
reasonable doubt"); State v. Hoang, 94 Hawai#i 271, 279, 12 P.3d
371, 379 (App. 2000) ("In general, it is inherently difficult, if
not impossible, to divine what effect a violation of the
3
In light of our conclusion, we need not address Stern's other claims
that the District Court violated Tachibana.
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defendant's constitutional right to testify had on the outcome of
any particular case"). We therefore vacate Stern's DWOL
conviction.
(2) Stern argues there was insufficient evidence to
support his conviction because the State did not prove that the
vehicle he was operating on the date of the incident was a moped,
as defined in HRS § 286-2 (2007).4 At trial, the citing officer
testified several times that Stern was operating a "moped."
Stern did not object to, or move to preclude, the officer's
testimony as to the type of vehicle that Stern operated. The
District Court was thus entitled to consider the officer's
testimony that the vehicle Stern operated was a moped. See State
v. Samuel, 74 Haw. 141, 147, 838 P.2d 1374, 1378 (1992) ("The
general rule is that evidence to which no objection has been made
may properly be considered by the trier of fact and its admission
will not constitute grounds for reversal.") (citation omitted).
On this record, and viewing the evidence in the strongest light
for the prosecution, see State v. Kalaola, 124 Hawai#i 43, 49,
237 P.3d 1109, 1115 (2010), there was substantial evidence that
Stern was operating a moped. We therefore reject Stern's
contention that there was insufficient evidence to support his
conviction.
4
HRS § 286-2 provides:
"Moped" means a device upon which a person may ride which
has two or three wheels in contact with the ground, a
motor having a maximum power output capability measured
at the motor output shaft, in accordance with the Society
of Automotive Engineers standards, of two horsepower (one
thousand four hundred ninety-two watts) or less and, if
it is a combustion engine, a maximum piston or rotor
displacement of 3.05 cubic inches (fifty cubic
centimeters) and which will propel the moped, unassisted,
on a level surface at a maximum speed no greater than
thirty miles per hour; and a direct or automatic power
drive system which requires no clutch or gear shift
operation by the moped driver after the drive system is
engaged with the power unit.
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Therefore, IT IS HEREBY ORDERED that the Judgment
entered by the District Court on September 5, 2019, is vacated,
and the case is remanded to the District Court for a new trial.
DATED: Honolulu, Hawai#i, December 28, 2020.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Phyllis J. Hironaka,
Deputy Public Defender, /s/ Katherine G. Leonard
for Defendant-Appellant. Associate Judge
Stephen L. Frye, /s/ Clyde J. Wadsworth
Deputy Prosecuting Attorney, Associate Judge
for Plaintiff-Appellee.
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